Can The Courts Change Your Will?Sep 19 2019
In a recent BC Supreme Court case, a couple with six children left the bulk of a $9 million estate to their two sons and left a small balance to be split among the four daughters. The court changed the terms of this will to provide a fairer and more equitable distribution for the daughters.
This change – or variation – was made to formally recognize the role the daughters had played in helping build the value of the estate over the years while also taking care of their aging parents later in life. The court also took into consideration contemporary moral standards regarding inheritance and gender of children to assess the unfairness of the parents’ wishes.
Based on the above example, it might leave one with the impression that getting a will changed is fairly simple and straightforward. In reality, it is a very complex, costly and time-consuming process. The courts place a great deal of emphasis on a person’s last wishes and are reluctant to overrule them. As long as it is determined that the will-maker has met their legal and moral obligations, a large range of distribution options will be respected.
While there is latitude in how a will-maker distributes his or her assets through a will, if a judge is asked to review the distribution then there are some standards that will be applied.
Division 6, Section 60 of the province’s Wills, Estates & Succession Act states that a person should make “…adequate provision for the proper maintenance and support of the will-maker’s spouse or children.” If this is not done, the court may opt to vary the terms of the will to redistribute the estate as it “thinks adequate, just and equitable in the circumstances.” Family members must first legally contest the will by serving the executor with sufficient notice.
It is worth noting that just because someone believes they or their family is being treated unfairly in a will, it does not necessarily mean that the courts will agree. There are circumstances where a court will determine that the deceased did not have a moral obligation to provide for an adult child. The court also has leeway in how it distributes an estate. Even if a variation claim is successful, for example, a disinherited sibling or sibling who received significantly less than his or her brothers and sisters still may not inherit equally with other siblings.
Whether a variation claim will be successful and the probable outcome of that claim are fact-specific situations that generally require legal advice. If the court finds that the reasons for disinheriting a child or spouse are not valid or rational, the court can change the distribution of the assets and/or funds given in the will. It is only when these claims are backed up with evidence that a judge will consider making a variation.
Other Reasons A Will Might Be Changed
A will normally includes an individual named by the will-maker to carry out his or her wishes who is given the title “executor”. If a person has reason to believe that the named executor is misappropriating funds or otherwise improperly handling the assets, a request can be made to replace that executor with someone else. Proof will need to be shown to verify this request, including documentation of inappropriate or inexplicable transactions.
There is also a situation that refers to “undue influence”, where a person may feel that someone close to the deceased pressured him or her to make changes to their will to award that person with a portion or larger share of the estate. This can be problematic, particularly in those instances where there is no reasonable explanation for that change to have taken place.
It Pays To Be Prepared
Having a properly prepared estate plan can help reduce the risk of a costly and difficult court battle that could end up causing irreparable damage and family rifts. If you have questions about estate planning, contact a member of RDM’s Wills & Estate Planning team today for a consultation.